Peter Waldkirch is a second year LL.B. student at the University of Ottawa.

Jack Kirby (1917-1994) is well-known to comic book fans as one of the most influential artists and authors in the history of the industry, particularly noted for his groundbreaking work with Marvel Comics during the 1960s. Kirby had a hand in the development of many of Marvel’s most valuable properties, including the X-Men, The Fantastic Four, Iron Man, and many others. Recently, however, his estate has been making waves of a different sort. The estate, represented by Marc Toberoff, has launched the opening salvos in a battle to reclaim ownership of the characters developed by Kirby and now owned by Marvel by filing numerous notices of termination of copyright transfer.

The claims revolve around s. 304(c) of the US Copyright Act. This complicated mechanism was first introduced in the 1976 copyright overhaul in an effort to balance the interests of the authors of copyrighted works and the owners of those works. Prior to 1976 copyright in the US lasted for an initial period of 28 years with the possibility of renewing the copyright for a further 28 years, for a grand total of 56 years. The 1976 reforms introduced a copyright duration of the lifetime of the author plus 50 years, but for works authored before 1978 (when the new Act took effect), the 28 year renewal term was extended to 47 years, for a maximum of 75 – effectively, a 19 year extension.

From some authors’ perspective, this posed a problem. It was argued that this was an unfair windfall for publishers who had received a transfer of copyright prior to the extension, since the original transfer would have been negotiated on the assumption of a 56 year protection period, not 75. Congress accepted this, and so created a mechanism by which the author (or heirs) could reclaim the copyrights for the balance of the extension once the original period would have expired. When copyright protection was extended yet again in 1998 (adding another 20 years for works published before 1978 for a new total of 95 years of protection), Congress included a similar termination process, leading to the current s. 304(c).

The most prominent use of these powers so far has concerned another comic-book superhero: Superman. Superman was created by Joe Shuster and Jerry Siegel in 1932 and sold to (what would become) DC Comics for $130 and vague promises of future work. The pair would come to rue the deal, and sued twice in an effort to reclaim ownership of the copyrights (first in 1947 and then in 1973), losing both times. In 1999 Siegel’s estate filed a notice of termination of transfer, which has resulted in much recent litigation (in which the Siegel estate has been represented by Marc Toberoff). In 2004 the Schuster estate followed suit. The dust hasn’t fully settled yet, but following the conclusion of a recent round in the courtroom looking into the accounting of the most recent Superman film, Mr. Toberoff claimed that “in 2013, the Siegels, along with the estate of Joe Shuster, will own the entire original copyright to Superman, and neither DC Comics nor Warner Bros. will be able to exploit any new Superman works without a license from the Siegels and Shusters.”

There are important differences between the Siegel/Schuster and Kirby claims, however. There was no doubt about the authorship of Superman, or that he was created outside of any employment relationship. Works for hire, however, are explicitly excluded from s. 304(c), which will certainly lead to a close examination of Kirby’s working relationship with Marvel. Crucially, there is also uncertainty regarding the authorship of many of the characters in question. Kirby collaborated with other artists and writers (most notably Stan Lee), and untangling who did what will prove challenging. The most controversial claim amongst comic fans is that for Spiderman, who has traditionally been attributed to Stan Lee and Steve Ditko.

The notices filed by the Kirby estate are just the first step in the termination process. The estate won’t be able to actually receive ownership of any characters until 2017 (when the original 56 year periods will start to run out). Until then, neither side need take any steps. What is clear is that big money is involved. Just a week before the notices were sent out, Disney announced that it was buying Marvel for $4 billion. The X-Men and Iron Man are two of the hottest contemporary movie franchises. With such high stakes, it seems certain that we are only at the beginning of what will be a long and hard-fought battle.

4 Responses to “Termination of Transfer of Copyright and the Estate of Jack Kirby”

Nice! Didn’t know copyright transfers could be so interesting. Add comics to anthing, that’s the ticket.

So i should probably know know this, but does this mean that 70 years after the transfer Superman would become part of the public domain? It’d be nice to have a list of characters with the dates they become public. Or legally public, for that matter.

It’s worth keeping in mind, rafael, that even when Superman does become public domain, his image and related materials (logo, the S-insignia, et cetera) remain trademarked to DC/Warner Brothers. So while you could reprint Action Comics #1 legally after it becomes public domain, you couldn’t advertise anywhere on the cover that it featured Superman, nor could you use his trademarked image.

(There was actually a case, some years back, where Malibu comics reprinted some old public domain Mickey Mouse newspaper strips, only to have Disney sue them anyway. Even though the cover was all black, the word “Mickey” was never used anywhere in the logo, and the comic was bagged to prevent anyone from flipping through it before buying it, Malibu still backed down after two issues.)

John Seavey said: “It’s worth keeping in mind, rafael, that even when Superman does become public domain, his image and related materials (logo, the S-insignia, et cetera) remain trademarked to DC/Warner Brothers. So while you could reprint Action Comics #1 legally after it becomes public domain, you couldn’t advertise anywhere on the cover that it featured Superman, nor could you use his trademarked image.”

Not quite.
While you couldn’t use the CURRENT logo, s-shield, etc., you could use the ACTUAL cover of Action Comics #1.
You see, while DC/Warners owns the current versions, they wouldn’t own the ORIGINAL ones used in Action Comics #1.
When everybody and his uncle were putting out VHS (and later DVDs) of the now-public domain 1940s Fleischer Superman cartoons, they had to use either images from the cartoons themselves or the original ad/poster art on the covers. (and they DID call them “Superman” cartoons on the covers!)
However, if they used ANY other versions of Superman (Wayne Boring, Curt Swan, Neal Adams, etc.) DC/Warners could (and DID) legally stop them by claiming trademark infringement, since the art wasn’t from the ONLY public domain version of Superman–the Fleischer cartoons!

There’s some interesting stuff in considering what elements constitute a famous fictional character. What plot elements are crucial? What symbols?

My favourite example of this are the Ruby Slippers from the movie version of The Wizard of Oz. The original book is in the public domain, but featured silver shoes. The movie, which is still protected by copyright, changed them to ruby in order to be more dramatic in technicolour. So anyone is free to write a story about Dorothy — but if you want her to have Ruby Slippers, you’ll need to license them!

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